Surrogacy Guide: State by State

Each Australian state and territory has its own rules as to surrogacy. Currently all the states, territories, Commonwealth and New Zealand governments are considering reviewing arrangements as to surrogacy, so that all laws are consistent with 15 principles. Those principles are currently secret.

All the states and territories are opposed to commercial surrogacy arrangements. There are no commercial surrogacy clinics in Australia. Australians travel overseas for commerical surrogacy arrangements. Commercial arrangements overseas can lead to complications. The states have moved or are moving to allow altruistic surrogacy.

When a court order for transfer of parentage is made, as it can be in Victoria, the ACT and WA, that order is recognised under the Family Law Act, the Child Support (Assessment) Act and the Australian Citizenship Act. A foreign order may not be recognised under those Acts.

Queensland

Legislation: Surrogate Parenthood Act 1988

Is commercial surrogacy allowed?
No. It is a criminal offence for any commercial surrogacy arrangement to be entered into in Queensland. It is also a criminal offence for a person ordinarily resident in Queensland to enter into a commercial surrogacy arrnangment anywhere in the world.

Is altruistic surrogacy allowed?
No. The same rules that apply to commercial surrogacy apply to altruistic surrogacy.

Are there any proposed changes?
Yes. Following the Parliamentary Committee’s inquiry into altruistic surrogacy, the Bligh government announced that altruistic surrogacy would be decriminalised. On 11 February, 2009 Parliament passed the Surrogacy Act 2010, which was the Government’s Bill.  The key features are:

• traditional surrogacy and gestational surrogacy would be allowed
• altruistic surrogacy would be allowed
• surrogacy agreements would not be enforceable
• there would be a transfer of legal parentage
• resident parents must reside in Queensland
• commercial surrogacy would remain a criminal offence– both in Queensland and by those ordinarily resident in Queensland throughout the world.

The Opposition had vehemently opposed the Bill, and had its own version. The key features are:

• the Government’s bill proposes to cover single people and same sex relationships, as well as married and heterosexual de facto couples; and
• would also recognise lesbian co-mothers as parents on birth certificates; but
• the Opposition’s bill excludes single people, those in same sex relationships, and those in heterosexual de facto relationships that are less than 2 years; and
• excludes lesbian co-mothers from being recognised.

At least one member of the Opposition stated that if the Opposition were elected at the next election, it would roll back coverage for same sex couples and singles.
New South Wales

Legislation: Assisted Reproductive Technology Act 2007

Is commercial surrogacy allowed?
No. It is an offence. It is not an offence for a NSW resident to arrange a commercial surrogacy outside NSW.

Is altruistic surrogacy allowed?
Yes, but other than the regulation of IVF clinics it is not regulated.

Can legal parentage be transferred?
No – other than through adoption. Generally the ability to transfer parentage is seen as a preferable approach. If unable to transfer, then the usual complications arise as to prior parentage, such as child support.

Are surrogacy agreements binding?
No. They are void.

Who is covered?
Everyone. As altruistic surrogacy arrangements are not specifically regulated, therefore everyone has coverage: married and de facto couples, same sex couples and singles.

Do the intended parents have to live in NSW?
No.
Australian Capital Territory

Legislation: Parentage Act 2004

Is commercial surrogacy allowed?
No. It is an offence. Like Queensland, it is also an offence for an ACT resident to go anywhere in the world to obtain a commercial surrogacy.

Is altruistic surrogacy allowed?
Yes.

Can legal parentage be transferred?
Yes, but only to intended parents from the ACT.

Are surrogacy agreements binding?
No, but an agreement is required for a transfer of parentage.

Who  is covered?
Anyone, but: to have a transfer of parentage, it applies to couples only, not singles. Married, de facto and same sex couples are included.

Do the intended parents have to live in the ACT?
No, but there cannot be a transfer of parentage unless they do.

Victoria

Legislation: Assisted Reproductive Treatment Act 2008
Status of Children Act 1974

Is commercial surrogacy allowed?
No. It is an offence. There is no international ban as there is in Queensland and the ACT.

Is altruistic surrogacy allowed?
Yes.

Can legal parentage be transferred?
Yes.

Are surrogacy agreements binding?
Unlikely.

Who is covered?
Everyone: married couples, de facto and same sex couples and singles.

Tasmania

Legislation: Surrogacy Contracts Act 1993

Is commercial surrogacy allowed?
No. It is an offence. It is not an offence for Tasmanians to go overseas to commercial surrogacy clinics.

Is altruistic surrogacy allowed?
No. It is an offence.

South Australia

Legislation: Family Relationships Act 1975

Is commercial surrogacy allowed?
No. It is an offence. There is no restriction on South Australians attending overseas commercial surrogacy clinics.

Is altruistic surrogacy allowed?
No. It is declared illegal and void.

Are there any changes on the horizon?
Yes. The Statutes Amendment (Surrogacy) Act 2009 commences on 26 November, 2009. Its effect:

• commercial surrogacy remains illegal
• altruistic surrogacy is permitted, but there needs to be compliance with a recognised surrogacy agreement
• it is unlikely that agreements are binding
• coverage is limited to South Australian residents, who are married or in a heterosexual de facto relationship for 3 years
• the intended mother must be infertile or there is a risk of a genetic disease being passed on otherwise
• there appears to be some suggestion (although it is unclear) that the surrogate must be the mother, sister, step-sister or first cousin of one of the intended parents
• there can be transfer of legal parentage

Western Australia

Legislation: Surrogacy Act 2008

Is commercial surrogacy allowed?
No. It is not an offence to enter into a commercial surrogacy arrangement, but the clinic would be committing an offence. It is not an offence for a Western Australian to go to an overseas commercial surrogacy clinic.

Is altruistic surrogacy allowed?
Yes.

Can legal parentage be transferred?
Yes, but the intended parent or parents must be WA residents, and one or both must be at least 25.

Are surrogacy agreements binding?
Unlikely.

Who is covered?
Everyone, but: married, heterosexual and same sex de facto couples and singles can be intended parents, provided all are WA residents and one or both are 25 or older.

Northern Territory

Legislation: Nil

There appears to be no legislation in the NT covering surrogacy. It would not be an offence for a Territorian to attend an overseas commercial surrogacy clinic. The ability to adopt in the NT is restricted to married couples or Aboriginal traditional marriage couples, or single people in exceptional circumstances.

ART and IVF services in the Territory are only offered by South Australian doctors, who have to comply with South Australian guidelines. Therefore they do not offer surrogacy services. it is not know what might happen after 26 November, 2009.